9911796707
TMI Blog1971 (8) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... bills, he was returning from Daman on August 24, 1968 at about 10.30 P.M. in an hired private car bearing No. BMZ-4935 belonging to one Bhaskerrao Manchharam. There were two other persons traveiling in the said car from Daman to Vapi. As the car approached Kunta cross-road, a Customs raiding party stopped the car as the raiding party found the movements of the car to be suspicious and on the search of the car, a sum of Rupees 51,000/- was found from under the driver's seat. After making a panchnama, the said amount was seized and the statements of the driver of the car and two other persons as well as of the petitioner were recorded by the Sub-Inspector of Customs Mr. Samuel. The statement of the petitioner was recorded in English and the statements of three other persons were recorded in Gujarati. On February 17, 1969, a show cause notice bearing No. VIII 10, 1355. 58-6884, dated February 14, 1969, issued by the Assistant Collector of Customs, Surat, was served on the petitioner. The petitioner was called upon by the said notice that as it appeared to the Assistant Collector that the Indian currency of Rs. 51,000/- seized from the car was the sale proceeds of smuggled goods, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith any goods of foreign origin and that the Indian currency notes under the seizure were of the sale proceeds thereof, it was pointed out by the Collector hearing the matter, that the case of Department was not that the currency in question were the sale proceeds of the smuggled goods of the foreign origin, but the currency in question were obtained by the petitioner in disposal of 'silver' which the petitioner had brought from Bombay to Daman for purposes of it being exported from a place other than the Land Customs Station or a Customs Port appointed for the loading of silver and the silver being prohibited goods, the petitioner has committed a Customer offence under Section 113 which made him liable under Section 121 of the Customs Act. The Advocate for the petitioner made a grievance that the notice as required under the Customs Act did not disclose the case as disclosed at the time of hearing, but however, as the Collector desired him to make his submission on the case of the department as clarified by him, the Advocate of the petitioner made further submissions and contended that the statements of the witnesses supplied to the petitioner did not suggest that the petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice served on the petitioner. At the time of hearing the basis for the proposed action as clarified by the Collector was that the amount in question represented the sale proceeds of the silver which was a prohibited article and which had been brought from Bombay to Daman for purposes of it being exported from a place other than the land Customs Station or Customs Port appointed for the loading of silver. In submission of Mr. Ramchandani, this was not the basis for the proposed action in the notice. It has been further contended by Mr. Ramchandani that even on the basis as further elucidated by the Collector at the time of hearing, the evidence did not establish that the silver was brought to Daman and that it was meant for purposes of export. In submission of Mr. Ramchandani at the relevant time there was no restriction on carrying of articles of silver inside the territory of India from one place to another. 4. On behalf of the Union of India, Mr. S.N. Shelat the learned Assistant Government Pleader, urged that from the evidence, it has been clearly established (1) that the petitioner took the silver from Bombay to Damun, (2) that he sold silver at Daman; (3) that the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods of foreign origin but on the contrary the case of the Department as pointed out by the Collector was that the amount in question represented the sale proceeds of prohibited articles, namely, silver, which the petitioner took near the port of Daman for purposes of export. Now it does not require much imagination to show that the basis as disclosed in the show cause notice was quite contrary to the case which was found by the Collector on certain statements recorded by the authority of the Department. The case which has been found proved against the petitioner by the Collector was that the amount in question represented sale proceeds of the prohibited article, namely, silver sold at Daman for purposes of export. Therefore, it was on this diametrically opposite case, namely, the case of export as contrary to the case of import in the show cause notice served on the petitioner, that the petitioner has been found guilty of the offence under Section 131 of the Customs Act read with Section 121 of the said Act. In our opinion, therefore, that would invariably cause great prejudice to the petitioner in defending himself against the new case of the Department. Therefore, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Government Pleader even fairly conceded that the Department has got to establish that the petitioner brought the prohibited goods near the port of India for purposes of export outside India. In submission of Mr. Shelat this fact can be found from the statement of one of the witnessess Mr. B.P. Savlekar who was one of the persons travelling in the car with the petitioner at the time when the search was made at the Customs Checking Post. Now, it should be noted that the Department has recorded two statements of Savlekar, one on the day when the first statement was recorded i.e. on 25th of August, 1968 the day next to the day on which the seizure was made, and the second statement was recorded on 10th of February, 1969 only four days before the issuance of the show cause notice. In the first statement the said witness Savlekar did not tell anything about the throwing away of currency notes under the seat of the driver of the car or about the admission by the petitioner to him that the amount in question represented the sale proceeds of silver brought from Bombay and sold at Daman. These two allegations were sought to be established from the second statement of Shri Savlekar which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 124 of issuing a show cause notice before passing an order confiscating any goods or imposing any penalty on any person under Chapter 14 of the Customs Act. Mr. Shelat the learned Assistant Government Pleader was right that it was pointed out by the Collector at the time of hearing what was exactly the nature of the case of the Department. But that case, as we have stated earlier, is quite contrary to the basis of the proposed action as disclosed in the show cause notice. The obligation of issuing notice under Section 124 is (sic) a notice which must be in writing informing the person sought to be held liable as to the grounds on which it is proposed to confiscate the goods or the imposing of penalty. The grounds must, in our opinion, state precisely and clearly the facts which constitute the customs offence. Even at the cost of repetition we must say that the grounds stated in the show cause notice were, that the petitioner was a person dealing in the goods of foreign origin and the amount in question represented sale proceeds of such goods. The case found after the hearing was, that the petitioner was a person dealing in smuggled goods, inasmuch as he took the proh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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